Last Sunday, Malta, together with a number of countries, celebrated Father’s Day. Declarations of love and respect towards fathers were posted all over social media and many lucky fathers were showered with gifts or other tokens of appreciation from their children. However, not all fathers were lucky enough to enjoy such treatment and attention. In today’s article, we look at fathers’ rights under Maltese Law and how fathers may enforce said rights.
Article 131 of the Civil Code bestows parental authority on both parents. This means that decisions concerning a child are to be taken jointly by parents. These decisions include where the child shall reside, where the child shall attend school, and whether the child shall undertake a particular medical treatment or procedure. Should there be disagreement between the parents on matters of particular importance, either parent may resort to the Court for a direction. Moreover, in case of an imminent danger, either parent is authorised to take any necessary decision required in that urgent situation.
An important legal matter related to children of couples who have different nationalities also relates to the child’s citizenship and domicile, which in very simple terms, is that country in which the child is to mainly reside. Fathers have an equal say as mothers in such decisions and, a mother taking a child away from the father and moving to another country would be considered as child abduction with serious repercussions at International Law level.
Childbirth and Child’s early days
The law is silent on what role fathers play at childbirth and during the child’s first years. This appears to be a matter dictated by nature and culture. There is no right for fathers to be present during childbirth, as recent measures adopted by hospitals during the Covid-19 pandemic have shown. Who accompanies a mother during childbirth remains at the mother’s and the medical professionals’ discretion.
However, in the spirit of advocating co-parenthood, fathers may now benefit from special parental leave. Moreover, a number of companies are offering special leave days over and above statutory leave for fathers who have a new born.
A pregnant woman may decide not to disclose to the child’s father that she is pregnant. She may even keep the birth a secret from the father. Should a mother take such a decision, the child would be registered on the mother’s name and surname at the time of birth. This means that if the mother is unmarried, the child would be registered as having an 'unknown' father, while if the mother is married, the mother’s husband would be registered as the child’s father.
However, a man interested in knowing whether a woman is pregnant with his child, or whether a child born to a woman is his, can file paternity proceedings. These proceedings, which involve DNA tests, would lead to the man being acknowledged as the child’s father. He would then be vested with parental authority, and all the rights and responsibilities that this involves at law.
A man registered as the father of a child whom he knows is not his can also file proceedings. These proceedings would amend the registration with the Public Registry and also divest the man from all legal rights and responsibilities that come from being regarded as a child’s father at law.
An important right for fathers provided by the law at such an early stage in a child’s life is one related to adoption. Should a mother decide to put her child up for adoption, the father’s consent is to be given as well, unless the mother declares that the father is unknown. Recently, a father has challenged an adoption which was made without his consent. However, the Court declared that such a challenge, given the particular circumstances of the case, was against the best interests of the child concerned and thus dismissed the father’s case.
Issues that arise when a child’s parents do not exercise co-parenting
Contrary to popular belief, should a child’s parents not reside together, it is not automatic that a child is to reside with the mother. It is true that in the majority of cases children reside with mothers. Although this used to be mainly based on tradition, it is also true that mothers, more than fathers, have more flexible working hours or work arrangements intended to facilitate a child’s routine.
In fact, should a father be successful in showing that a child’s best interest is that the child resides with him, there is nothing at law which impedes this. It is true that due to societal considerations and work practices, it is more difficult for a father to prove this than a mother, but our courts have now decided many cases where a child is to reside with the father. What is more difficult to achieve is sole care and custody, since for a father to get such a declaration means that the mother is to be declared as an unfit parent.
The spirit of the law and the general attitude of the Courts advocate co-parenting
Where a child resides with the mother, the father has then the obligation to pay maintenance for the child, but he also has right of access to the child. Said access is possibly the most abused father’s right. There is nothing at law which stipulates how much time a father should spend with his children. However, our courts have become more and more vociferous on the importance of fathers exercising good quality time with their children, and how this is beneficial to the child’s development. In order to protect court-sanctioned agreements and orders related to access, a father has a right to take legal action against a child’s mother should the latter fail to ensure that such access occurs. Should a mother stop a child from seeing the father, or the father from visiting the child, she could face criminal charges that might lead to imprisonment.
All in all, the spirit of the law and the general attitude of the Courts advocate co-parenting. Fathers, on paper, have equal rights as mothers because this is in the best interests of children and no child should suffer because of relationship issues that arise between parents.
Dr Anthea Witney Turner
Employment Law - Civil Law - Family Law
This commentary should not be regarded as legal advice. Should you have any issues regarding parental rights and obligations kindly contact us so we can assist you.
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